Blog

Law and the Environment

Our blog provides perspective on developments in environmental law and policy - which developments may matter to you, and how and why they matter. Whether you are a manufacturer or a power plant developer, a renewable energy developer or hoping to be a renewable energy consumer, this blog offers commentary on current issues that are important to your business.

EPA Designates PFAS as Hazardous Substances; EPA Is More Confident Than I Am that the Sky Isn't Falling
Blog April 21, 2024
Last Friday, EPA formally designated perfluorooctanoic acid and Perfluorooctanesulfonic Act – including their salts and structural isomers! – as hazardous substances under CERCLA. I cannot really quarrel with the underlying decision to list PFOA and PFOS. Given the developing evidence about the risks that they pose, it’s difficult to argue that they are not in fact “hazardous substances.”…
What Will Be the Real Consequences of an EPA Decision to List PFAS as Hazardous Substances Under CERCLA?
Blog November 07, 2023
Last week, Inside EPA (subscription required) reported that EPA will reopen CERCLA cleanups due to the presence of PFAS on a case-by-case basis.  The article reported on the gnashing of teeth among the regulated community at the prospect of seeing a significant number of sites reopened.  As a card-carrying member of the regulated community, I am prone to teeth-gnashing as well.  And I agree with my friend Jeff Porter…
Its Good to Be a Brownfield Site - As Long As It's Not Too Brown
Blog September 01, 2022
Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much.  On its face, it's simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”…
Sometimes the Law Really Is Unambiguous - Clean Water Act Edition
Blog May 03, 2022
Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or injunctive relief.  I don't think that the decision would even have been newsworthy, if it hadn't required that the Court overrule its 1991 decision in North and South Rivers Watershed Ass'n v…
I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is
Blog May 25, 2021
Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court's tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be.  The Court's approach to section 113 in yesterday's decision followed this now well-worn path.  In a short, sweet, and unanimous decision…
Governor Jim Justice and the Progress of Man
Blog July 29, 2020
On Monday, Judge David Faber found Bluestone Coal Corporation liable for 1,904 days of violations of its discharge permit at the Red Fox Surface Mine.  All of the violations related to excessive discharges of selenium.  Bluestone's defense, rejected for a second time by Judge Faber, was that the existence of a consent decree precluded the separate action for enforcement of the permit.  However, the permit and its specific discharge limit for selenium only came into effect after the entry……
It's Still Good to Be King; SCOTUS Continues to Interpret CERCLA In Ways Unrecognizable to Practitioners
Blog April 20, 2020
I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions.  The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work. Exhibit A for this argument is the latest SCOTUS Superfund decision…
Settling Federal Environmental Enforcement Claims  Some Payments to Third Parties May Be Allowed (But Not Many)
Blog January 31, 2018
Earlier this month, Jeffrey Wood, Acting Assistant Attorney General for Environment and Natural Resources issued a memorandum expanding on Jeff Sessions' memorandum of June 5, 2017, generally barring payments to third parties as part of government settlements.  (And, yes, I know there should be another “s” after the apostrophe, but I'm hereby announcing a new rule; if I can't pronounce it, I'm not writing it!) The Wood Memorandum affirms – of course – the June 5 Memorandum…
Pruitt Banishes Sue and Settle  A Solution In Search of a Problem?
Blog October 16, 2017
EPA Administrator Scott Pruitt today issued a Directive prohibiting the practice of “sue and settle.”  He also issued a Memorandum to senior staff explaining in more detail some of the concerns about “sue and settle.”  They are two very strange documents. As to the substance of how EPA will handle future citizen suit claims, there are some specific concrete steps which individuals and groups across the political spectrum actually can support…
1 of 3

ABOUT

In today’s fast changing world, almost all of us get our news – including our news about developments in environmental law and policy – electronically. This blog is not intended to be a substitute for the BNA™, or Greenwire™, or Google™, although we do hope that we will be able on occasion to let you know about issues that haven’t yet come to your attention.

What we really want to accomplish is to be able to provide some perspective on those developments. We’ll try to tell you which developments may matter to you. And why they matter. And how they matter. Whether you are a manufacturer or a power plant developer, whether you are a renewable energy developer or hoping to be a renewable energy consumer, whether you are a municipality or public agency or university, we want to comment on current issues in a way that is useful to you in your business.

Frankly, this blog also provides us with the opportunity to introduce you to Foley Hoag’s Environmental Practice Group. Our practice has been New England’s preeminent environmental practice for the past twenty years. We have the depth and capacity to handle the wide array of environmental issues that can arise in the course of your business. We will work with you to resolve any environmental issues that must be addressed in order for you to achieve your business goals – from permitting new projects to cost-effective cleanup of urban Brownfields properties to implementation of cost-effective due diligence in the support of acquisitions to navigating the emerging world of climate change regulations.

We will also assist you in the defense and prosecution of environmental litigation. As a result of our service to our clients, we have attained a national reputation in environmental matters. Our lawyers have built an impressive record resolving environmental disputes at the negotiating table and in the courtroom, and a number of our cases have produced precedents of national importance.

The scope of this blog will be commensurate with the scope of our practice. We’ll cover climate change, renewable energy, hazardous and solid waste, clean air and water, sustainability and green design. You name it, if it’s got an acronym attached to it, we’ll cover it.

As the headline indicates, we want to inform, update, comment, and discuss. In other words, while we’re going to enjoy posting, we’ll enjoy the blog more – and its usefulness will increase – if we hear from you also. Please comment on the blog entries. Let us know about developments we missed or implications of our discussions that we did not consider.

We look forward to the conversation.